APPEAL AND ERROR — Record — Case-Made — Requisites. A case-made, settled and signed prior to the time fixed in the notice of settlement served upon defendant in error, in the absence of defendant in error or his counsel, where no amendments have been suggested thereto nor notice otherwise waived, is a nullity.
(Syllabus by the Court.)
HARDY, J.
Motion to dismiss is filed, setting up, among other grounds, that the case-made was signed and settled in the absence of defendant in error, and without notice to him of the time and place of settlement, and that no amendments were suggested by him thereto.
The records show that notice of settlement of case-made was served upon defendant in error on the 23d day of June, 1916, reciting that case-made would be presented for settlement on July 3, 1916. The certificate of the trial judge shows that same was settled and signed on June 26, 1916, seven days before the time set for such settlement in the notice, and was settled and signed in the absence of defendant in error or counsel representing him, and that no amendments were suggested nor notice otherwise waived. For this reason the case-made is a nullity and should be stricken from the files. Sand Springs Ry. Co. v. Oliphant, 53 Okla. 528, 157 P. 284; Jones v. Jones, 35 Okla. 453, 130 P. 139; Charles v. Hillman et al., 48 Okla. 549, 150 P. 461; Allen v. McLaren, 53 Okla. 567, 157 P. 349.
The second ground of the motion to dismiss is that the judgment appealed from is not shown to have been entered upon the journal of the court below. This ground should be overruled. St. L. S. F. R. Co. v. Taliaferro, ante, p. 585, 160 P. 610.
While the case-made is a nullity and should be stricken from the files, the record contains a certificate of the court clerk certifying that it is a true and correct transcript, and the case will be retained for consideration of errors assigned which appear on the face of the record.
The motion to dismiss will be overruled.
All the Justices concur.